Vineeta Sharma v. Rakesh Sharma: Clearing the last hurdle towards gender equality in Hindu property law

It is a lesser known fact that the provisions regarding succession in the Hindu Code Bill, as originally framed by the BN Rau Committee and piloted by Dr BR Ambedkar, was for abolishing the Mitakshara coparcenary and the son's right by birth to joint family property. This concept was to be substituted with the principle of inheritance by succession.

However, the final Bill was passed with major changes due to the opposition of elected representatives. To this, a disappointed Dr. Ambedkar reportedly said:

"It was not a compromise. My enemies combined with my enthusiastic supporters and my enemies thought that they might damn the Bill by making it appear worse than it was.”

In 2005, the Legislature, through a progressive amendment to the Hindu Succession Act 1956, brought in the much awaited change envisioned by Dr Ambedkar, by granting coparcenary rights to daughters. Statement of Object and Reasons of the Hindu Succession (Amendment) Act, 2005 provide clarity on the 2005 Amendment Act:

"3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section."

In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth. Therefore, sons had an exclusive right by birth in the joint family property. The Mitakshara coparcenary law contributed to discrimination on the ground of gender and negated the fundamental right of equality guaranteed by the Constitution of India.

Although the legislative intent of the Amending Act was clear, as is the case with any other amendment in a statute, it became a subject matter of intense legal debate and resulted in various courts interpreting the same in divergence.

The Apex Court in the case of Prakash & others v. Phulavati others laid down that the provisions of the amendment are applicable prospectively to living daughters of living coparceners as on 9.9.2005, irrespective of when such daughters are born. However, in Danamma @ Suman Surpur v. Amar, the Court granted the rights in a coparcenary to a daughter of a coparcener who had died much before 9.9.2005.

This created a divergence of legal opinion and the matter came to be referred to a larger bench for resolution in the case titled Vineeta Sharma v. Rakesh Sharma. The Supreme decided the reference in a landmark judgment pronounced on August 11.

The Bench, after discussing the law of creation of Mitakshara coparcenary and the nature of the rights of the members of a coparcenary under the Hindu law, proceeded to hold the right of the daughters under the Amending Act of 2005 to be retroactive rather prospective.

In its lengthy judgment, the Court noted detailed arguments raised against such an interpretation. It was unsuccessfully contended that a legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created. It was argued that the declaration by the law that the daughter of a coparcener has certain entitlements and is subject to certain liabilities, is prospective. The daughter is treated as a coparcener under the Amendment Act and not because of the daughter's birth prior to the amendment. If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law.

It was further argued that having regard to the plain language and future perfect tense "shall have the same rights," the only conclusion is that the daughters who are included in the coparcenary will have the same rights after the coming into force of the Amendment Act. It was contended that "daughter of a coparcener" means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. The Central Amendment has not made a distinction based on the daughter's marital status expressly but has made it evident by the use of the expression 'Joint Hindu Family' and 'daughter of a coparcener.' The provisions should be read to exclude married daughters. The provisions of Section 6, as amended, are prospective. It was not intended to unsettle the settled affairs.

However, the Court, repelling the above contentions, decisively held that what was significant is how right of a coparcener is acquired under the Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in Section 6.

The Court noted that prior to the Hindu Succession Act, women did not have any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. The Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, women did not become coparceners, but they could inherit the property under the unamended provision.

The 174th Report of the Law Commission of India recommended the adoption of the Kerala Model. Subsequently, amendments were effected in Kerala, Andhra Pradesh, Karnataka, and several other states, giving coparcenary rights to the daughters.

The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition – oral or written. Section 6 provides parity of rights in coparcenary property among male and female members of a Joint Hindu Family on and from September 9, 2005. The declaration in Section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal, the Court held.

The Court further observed that uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth. It is not to resurrect the past, but to recognize an antecedent event for conferral of rights, prospectively.

While carving out the above distinction, the Court held that the prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier.

It is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, a daughter born before can claim these rights only with effect from the date of the amendment, with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).

While distinguishing Phulavati, the court observed as under:

“75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati...The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming...”

On Danamma, which was partly overruled, it was noted as follows:

“78. In Danamma...Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.”

The Court finally concluded as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class ­I as specified in the Schedule to the Act of 1956 or male relative of such female.

After the reformative Amending Act of 2005 and the interpretation of the same in the instant judgment, the Mitakshara coparcenary has been diluted to a greater degree and will be more or less nothing but a relic of the past. Now with the discernment of the legal position, it is expected that the amendment will bring a much needed change in the social status of daughters.

It has already taken 15 years since the amendment was incorporated, but now, the Supreme court has paved the way by clearing the last hurdle and the onus is on the subordinate courts to be the flag bearers of change.

The author is a practicing advocate at the High Court of Punjab and Haryana. Views and opinions expressed are personal only.